Category Archives: Postconviction Matters

The question of when a criminal defendant is entitled to a do-over because his lawyer failed to correctly advise him of the immigration consequences of a conviction in light of the Supreme Court’s decision in Padilla v. Kentucky is getting more attention from the federal appeals courts. Today the Eleventh Circuit Court of Appeals decided the case of Rodolfo Hernandez v. United States, No. 13-10352 (decided Mar. 2, 2015). In a brief, nine-page decision, the court concluded that Mr. Hernandez who made allegations about shoddy lawyering against his former attorney should not have had his case summarily dismissed by a lower court; instead, the appeals court ruled, Mr. Hernandez should have been given a chance to build his case and climb what is almost always the very steep hill toward post conviction relief.

The story behind the alleged bad lawyering although pretty typical has some interesting twists. Mr. Hernandez claimed that his former attorney did not give him correct legal advice about whether he would be deported back to Cuba — his home country — if he pled guilty to a federal drug trafficking charge. The lawyer had mixed opinions about the issue. Because of the lack of diplomatic relations between the United States and Cuba it was not unusual for Cuban nationals convicted of crimes in the United States to remain in a sort of immigration limbo; technically subject to deportation but never actually being deported. At one point, because of this unique situation, the lawyer asked the judge for his insight, but the judge refused to get involved. Mr. Hernandez ultimately entered a plea — notably to every charge that was filed against him by the Government — and while he was serving time on his conviction received a letter from the Department of Homeland Security telling him that he may be subject to deportation.

The standard for proving a claim of ineffective assistance of counsel is a high one. Even if a lawyer did give his client bad advice, the client, in order to secure post conviction relief, must still have to prove that the outcome of the proceedings would have been different “but for” counsel’s poor performance — the so-called prejudice test. This is where most ineffective assistance claims run into trouble, as was the case with the Rasheed case, recently discussed in this blog.

But in a departure from how other appeals courts have ruled on the issue of prejudice — generally finding no prejudice because, among other reasons, there existed in the words of those courts overwhelming evidence of guilt — the appeals court in this case sided with the defendant. It did so because it accepted Mr. Hernandez’s claim that had he known about the risk of deportation that he, in fact, faced, he would not have pled guilty but instead would have opted to fight the charges at trial. Of course, had Mr. Hernandez gone to trial and lost, he would have received a much stiffer penalty than the one he received following his guilty plea. But to the court this trade off would have been a “rational” one for someone in Mr. Hernandez’s position whose main interest was avoiding deportation.

It will be interesting to see how the case unfolds now that Mr. Hernandez has been given the green-light to fully present his case to the trial judge. I expect that this won’t be the last time we hear from the Eleventh Circuit on Mr. Hernandez’s plight, although I fear that the next time the Eleventh Circuit speaks on this matter, it will not be in Mr. Hernandez’s favor.

The decision in Hernandez v. United States, No. 13-10352 can be accessed here.

Now that the Supreme Court has decided that Padilla cannot be applied retroactively, the lower courts are, as expected, trying to figure out what set of circumstances merits relief under Padilla — that is, when does a foreign national have a claim for ineffective assistance of counsel under the Sixth Amendment because his attorney did not give him the correct or any advice on the immigration consequences of pleading guilty to a criminal offense?

The Fifth Circuit Court of Appeals recently took up this issue in the case of United States v. Kayode, and, in a 2-1 decision, ruled against the petitioner, a federal prisoner who brought the appeal without the help of an attorney. The majority concluded that while the petitioner might have, in fact, received ineffective assistance of counsel — the petitioner told the court among other things that his attorneys failed to tell him he would be subject to deportation once he pleaded guilty to the charges brought against him by the Government — he did not show that his attorneys’ bad lawyering harmed him in any way. The fact that the petitioner resided in the country for 30-plus years, while relevant to whether the petitioner would have opted for a chance to fight his criminal charges at trial rather than succumb to a plea — his victory at trial would have presumably saved him from deportation — was, by itself, not enough to show he had been harmed by his lawyers’ shoddy work. Instead, the majority focused on what it believed was the strong case the Government had against the petitioner and the petitioner’s failure to rebut any of this with evidence of his own.

If this result seems unjust to you, you are not alone. Judge Dennis dissented from the majority decision, accusing the majority of short-circuiting the petitioner’s case. For one, Judge Dennis wondered, how could the petitioner have given the majority what it wanted when he was housed under lock-and-key for the duration of the appeal and prepared the entire appeal on his own without the help of an attorney? It is also puzzling, although Judge Dennis doesn’t make mention of this in his dissent, that the petitioner won’t be given a do-over, which is really what these kinds of postconviction cases are all about, when he has already demonstrated to the satisfaction of the entire court the grossly incompetent lawyering he received up until he pleaded guilty.

The opinion in United States v. Rasheed Kayode, No. 12-20513 (5th Cir. decided Dec. 23, 2014), can be found here.

UPDATE (2/24/2015): I have since learned that the petitioner in this case, Rasheed Kayode, had asked the appeals court to reconsider its decision. He is, surprisingly, still representing himself, and he prepared and filed his own petition for rehearing, which relies, exclusively, on Judge Dennis’s dissent, for the reasons why he should be given a rehearing.

The following is a “reluctantly dissenting” opinion written by a federal appellate judge in a case that concerned the voluntariness of incriminating statements made by a 19-year old to detectives in an interrogation room. The opinion is notable most of all for its honesty and is worth a read for lawyers and laypersons alike. It gives one faith that the cards are not always stacked against the down and out and that sometimes just results are the order of the day even if it means the law, at least as it is currently written, will not be followed to a “T”.

Chief Judge KOZINSKI, reluctantly dissenting:

This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for—and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love—or even understand—and perhaps not even most of them. I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam) (“[T]he inevitable consequence of [AEDPA] is that [federal] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”); see also Brown v. Payton, 544 U.S. 133, 148-49 (2005) (Breyer, J., concurring) (stating that even though he likely would have found a constitutional violation “[w]ere [he] a California state judge,” the state court’s denial of habeas relief was reasonable).

Under this unforgiving standard, Judge Murguia has the better of the argument. This is not a case where the state judges were confused about the law or overlooked key evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004). No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager. Another uneven contest that Sessomswas bound to lose.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. If the State of California can’t convict and sentence Sessoms without sharp police tactics, it doesn’t deserve to keep him behind bars for the rest of his life. I have seen far too many cases where police extract inculpatory statements from suspects they believe to be guilty, then stop looking for evidence, confident that the courts will uphold the interrogation, no matter how tainted. See, e.g., Milke v. Ryan, 711 F.3d 998, 1001-02 (9th Cir. 2013); Taylor,366 F.3d at 996-97. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 3-5 (2009); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 88-89 (2008). When courts bend over backwards to salvage evidence extracted by questionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence.

The state courts should have been far more vigilant in correcting and condemning the detectives’ improper conduct, particularly since it involved a naïve teenager who clearly tried very hard to invoke his constitutional right to have a lawyer present during questioning. The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

For those of you who are still following the Supreme Court’s decision in Padilla and its treatment by the lower courts, the Seventh Circuit recently issued a notable decision in which it might have put the final nail in the coffin of pre-Padilla claims.

The case is Chavarria v. United States, No. 11-3549 (7th Cir. decided Jan. 9, 2014). There petitioner there relied mainly on pre-Padilla law as the reason why he should be entitled to post conviction relief. His argument, which resembles one I have used, without success, in the past, was that even before Padilla, courts recognized ineffective assistance counsel claims for cases where a lawyer had affirmatively misadvised a client on the immigration consequences of a conviction; as opposed to when a lawyer gave no advice at all, which, everyone seems to agree, did not give rise to a claim of ineffective assistance until Padilla.

The Seventh Circuit made short work of this argument, however, and not in a way that benefitted the petitioner. It noted that the distinction between affirmative misadvice and no advice was irrelevant because, until Padilla, the courts never recognized a Sixth Amendment, ineffective assistance claim based on a collateral consequence of a conviction like deportation.

The Seventh Circuit relied, ironically, on Padilla itself in arriving at this conclusion. I say that because the petitioner sought relief on the exclusive basis of pre-Padilla law, which went entirely unaddressed by the Seventh Circuit. Therefore, unless the Seventh Circuit was implying that Padilla, in essence, overruled all past precedent in which courts gave post conviction relief to individuals who had been deported in violation of their Sixth Amendment rights — and there are such cases out there, as even the Seventh Circuit acknowledged — I am not sure how I see the Seventh Circuit reached the result it did. Nor can I see how Padilla could have overruled the decisions which preceded it which held in one form or fashion that an attorney can be liable for giving his client wrong advice about a conviction’s impact on his immigration status. That would be a truly perverse result where the Supreme Court in Padilla came down on the side of post conviction relief. The implied message of the decision in Chavarria, then, seems to be that in order to expand the universe of rights for one set of folks (those whose convictions became final after Padilla), the Supreme Court had to contract the universe of rights for another (those with convictions that became final pre-Padilla). That can’t be right, can it? Or am I missing something?

This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine.

One year later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas. See Chaidez v. United States, 132 S. Ct. 1103, 1110 (2012)(explaining the new Padilla rule). Chavarria then filed a pro se motion involving such a claim, pursuant to 28 U.S.C. § 2255.

Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation—specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement . . . and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padillaannounced a new rule not to be applied retroactively. The district court denied the government’s motion for dismissal, holding that the Padilla rule could be applied retroactively.

Shortly thereafter, we issued our opinion in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). The Chaidez majority concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based on the retroactivity of Padilla, and dismissed Chavarria’s § 2255 motion.

Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chaidez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues thatChaidez distinguished between providing no advice (actionable under the Padillarule) and providing bad advice (actionable under pre-Padilla law).

I.

At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity, we will look only to the state of the law at the time the conviction became final. For that reason, Chavarria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padillaannounced a new rule, which was not retroactive, when it affirmed our decision inChaidez. Chaidez, 133 S. Ct. at 1105.

II.

His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadvice provides an alternative basis for a constitutional claim under pre-Padilla law.

This argument about affirmative misadvice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre-Padilla,misstatements about deportation could support an ineffective assistance claim.Chaidez, 133 S. Ct. at 1112 (“Those decisions [in three circuits] reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution.”). Thus, Chavarria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresentations have long been subject to challenge under the test ofStrickland v. Washington, 466 U.S. 668 (1984).

Chavarria’s argument fails, first, because the distinction between affirmative misadvice and non-advice was not a relevant factor in Padilla. Second, the precedent, pre-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane. 489 U.S. 288, 301 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent).

A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters—is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct-collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at 366. That case determined that “a lawyer’s advice (or non-advice)” should not be exempt from Sixth Amendment scrutiny without reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S. Ct. at 1110. Therefore, in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all. Id. (“It was Padilla that first rejected the categorical approach— and so made the Strickland test operative—when a criminal lawyer gives (or fails to give) advice about immigration consequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pre-Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

The Chaidez majority jointly referred to both misadvice and non-advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language inChaidez offers some support for Chavarria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion.See e.g., Chaidez, 133 S. Ct. at 1110 (referring jointly to scrutiny of a lawyer’s misadvice and “nonadvice”).

Ironically, Chavarria asks us to recognize a distinction between misadvice and non-advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this distinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, thePadilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the posible absurd results. Padilla, 559 U.S. at 370-71. This discussion signals that the Padilla majority had no intent to exclude either affirmative misadvice or non-advice from the new rule it announced.

Finally, Chavarria relies on cases from three federal circuits to prove that the distinction between affirmative misadvice and the failure to advise, and a constitutional rule based on that distinction constitutes pre-Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dictated by existing precedent.Teague, 489 U.S. at 301. Chavarria cannot simply show the existence of such a distinction, but instead he must show that the distinction was so evident “that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world.”Chaidez, 133 S. Ct. 1112.

The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrepresentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lambrix v. Singletary, 520 U.S. 518, 538 (1997). At the time Chavarria’s case became final, precedent did not dictate that preclusion of an ineffective assistance claim was unreasonable when it arose from an attorney’s material misrepresentation of a deportation risk. Thus, even if this Court were to find the misadvice/nonadvice distinction relevant to this analysis, it does not have the clear precedential weight to be considered a pre-Padilla rule.

The district court correctly concluded that it was bound by Chaidez and that Padillahad no retroactive effect on Chavarria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non-retroactivity of Padilla, we AFFIRM.

The issue of Padilla retroactivity is not dead yet, well not entirely. The Court of Appeals of Maryland, the State’s highest court, recently decided the case of Lincoln Miller v. State, No. 94, Sept. Term 2012. In a 4-3 decision, the Court denied postconviction relief for a native of Belize based on a claim that he was not advised of the immigration consequences of his conviction.

The case has a long and convoluted procedural history which stems from the fact that it has been pending for a long time, before the Supreme Court even decided Padilla. It is not at all clear what the majority decides in this case aside from ruling that the petitioner is not entitled to relief. There’s discussion about Padilla retroactivity in light of Maryland and federal law (in a previous decision, the Maryland Court of Appeals held Padilla could be applied retroactively under the state’s retroactivity framework) but the majority opinions doesn’t make any inroads on the issue. The dissent, in contrast, argues that Padilla should be applied retroactively under Maryland law.

The following concurrence by Judge McDonald is perhaps the best take on both the majority and dissent opinions:

I will explain why I join neither of the thoughtful opinions in this case, although it may simply reveal my own ignorance in this arena. I agree with the result reached by the Majority opinion, but do not follow its reasoning — it says it is not applying the Teague standard for retroactivity, but is compelled to follow the result in Chaidez,which was based on the Teague standard. The Dissent points that out and states quite clearly that it believes a different standard set forth in this Court’s Daughtrycase should be applied. But I do not grasp the distinction that the Dissent makes between the Daughtry standard and the Teague standard in reference to this case, particularly in that the Dissent relies on Justice Sotomayor’s dissent in Chaidez — a dissent that applied the Teague standard.

In the end, I find Justice Kagan’s analysis for the Chaidez majority persuasive and would apply it here, whether one views it an application of the Teague standard or another standard that operates similarly. That brings me to the same place as the Majority.

I have written about the issue of Padilla retroactivity for some time and have in some respects made it the focus of this blog. Since the Supreme Court answered the question in Chaidez v. United States — that Padilla does not apply retroactively — it is no surprise that I have had less to say, or at least, report on the matter. Courts seem to have really given up on grappling with the issue in the wake of Chaidez even though the decision was a narrow one.

I should mention now that I have been engaged in my own efforts to convince a court to apply Padilla retroactively. This effort began in earnest in 2011 and ended only recently, in the last month or so. It was a pro bono effort on behalf of a federal habeas petitioner, which involved a number of very competent attorneys. I will not bore you with details of the litigation, like when the court sua sponte rejected our appeal following the Chiadez decision, or how disappointed we all were when it came time to throw in the towel — a decision we resisted until the very end. In today’s spectrum of “undesirables” it seems to me immigrants convicted of crimes fall somewhere between greedy bankers and unrepentant doping athletes.

This doesn’t mean Padilla retroactivity is dead in the water. Quite the contrary. As I have previously emphasized, the Court decided Chaidez on very narrow grounds and leaves room for an argument that Padilla should be applied retroactively to cases where an attorney has misadvised a client on immigration consequences, as opposed to ones where no advice was provided at all. The Chaidez court never addressed the former because it was not asked to do so. And Chaidez itself was a failure-to-advise case. Those seeking postconviction relief, either on their own or with the help of an attorney, should make this argument and they should do it early and often. Chaidez all but invites a future challenge to its scope and it would be irresponsible to turn that invitation away based on the flawed and lazy interpretations that courts have given Chaidez thus far. It took a little less than three years from its decision in Padilla for the Court to decide Chaidez. While it’s unlikely that the Court will revisit Chaidez in another three years — a relatively short time period to build the kind of groundswell that is required to successfully petition the Court — I think it likely that the Court will do so sooner or later.

It has been almost four months since the Supreme Court decided Chaidez, and the courts have been mostly silent on how this decision applies to both pre- and post-Chaidez cases. Granted, a number of courts have interpreted Chaidez expansively to foreclose any claim that seeks the retroactive benefit of Padilla. But this surely is not the right result given Chaidez’s intentionally narrow holding, and there is at least one case that will be testing the correctness of this assertion. Commonwealth v. Sylvain, No. SJC-11400 (Sup. Jud. Ct. of Mass.). In any event, I have yet to see a flood of dismissals based on the one-size-fits-all theory of Chaidez; yet further proof that Padilla itself did not open the floodgates to claims of ineffective assistance, as Justice Stevens astutely observed would not be the case. I wish I had more to report but I don’t. If anyone wishes to share any Padilla/Chaidez-related news, please do.